Complainant

Respondent

Parties

James Morgan

Mabs National Development Ltd

Representatives

John Keenan JRK Business Services

Cormac Grimes RSM Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00036594-001

09/06/2020

The Complaint was employed by the Respondent as a Dedicated Mortgage Adviser (DMA) from 11th July 2016 until 31st December 2019 when his employment was terminated. The Complainant claimed that he was unfairly dismissed by the Respondent contrary to section 8 of the Unfair Dismissals Act, 1977. 

The Respondent disputed the claim under the Unfair Dismissals Act and instead contended that the Complainants employment ceased by the lawful expiry of the fixed term of his contract.

Issue of Jurisdiction – Incorrect Respondent

The Complainant Representative stated that it was disingenuous of the Respondent to object to the change of name.  He stated that when the Complainant was dealing with MABS Development Ltd the person representing that entity was Ms. AM O’C and that, on the day of the hearing the person still representing MABS Support CLG was Ms. O’C.  He stated that the Complainants contracts of employment were all with MABS Development Ltd. and that when his termination was notified to him, the consideration of the grievance he raised was begun by Ms. O’C and the subsequent appeal was heard by the new entity.  He stated that Mr. O’L who was the Chairperson of MABS Support CLG heard the appeal and issued his decision in April 2020.  He pointed out that MABS Support CLG had assumed responsibility for the matter, having dealt with it at appeal stage.

He further stated that MABS Development Ltd became the new entity MABS Support CLG and that the constant link between both entities was Ms. AM O’C who had been handling the matters throughout.  He pointed to the fact that MABS Support CLG had attended mediation on this matter, though he accepted that this could not be taken into account.  Finally, he relied upon the case of ADJ 00015823 and UDD 1954 in support of his position that it was within the authority of the Adjudication Officer to amend the name of the Respondent.  The Complainant Representative formally requested that the name of the Respondent be amended to MABS Support CLG.

In conclusion the Complainant Representative sated that the Chairperson of MABS Support CLG sat and heard the appeal of the Complainants grievance, that he behaved in that regard in line with the role of the employer, that in effect, he took on the role of the employer.  He stated that he did so because he recognised that the obligations and liabilities of MABS Development Ltd. Had transferred under TUPE to MABS Support CLG.

The Substantive Case

The Complainant submitted that he was employed by the respondent as a Relief Dedicated Mortgage Advisor (RDMA).  He submitted that he commenced employment on 11th July 2016 on a fixed term contract of employment and that his contract was due to expire on 31st December 2019.  He outlined that his role was an essential component of the MABs service structure and that he replaced or augmented Dedicated Mortgage Advisors as required.  He outlined that he based in Longford but that he routinely worked in offices in Mullingar and Sligo, but that he also worked in Drogheda, Cavan, Laois, Offaly and Dublin when required and he confirmed that the MABS structure extended over 60 offices nationwide.

He submitted that, similar to his colleagues, he was employed to provide advice and support to clients experiencing difficulties contributing to mortgage arrears across a wide variety of personal debts including personal loans, credit card debt, catalogue debts, debts to moneylenders and hire purchases.  He confirmed that he is a qualified Chartered Accountant and Personal Insolvency Practitioner. 

He submitted that at the date of his dismissal he was deployed on a five-day week, on a gross rate of pay of €4027.75 per month (€48,333.00 per annum). He further submitted that the MABS service is fully funded by the Department of Social Protection and Employment Affairs through the Citizens Information Board (CIB).

The Complainant submitted that on 2nd August 2018, Mr. A O’C, senior Manager, CIB, wrote to UNITE, the union recognised for the purpose of collective bargaining with the Respondent in order to “…explain the position of the Citizens Information Board with regard to restructuring and the plans for the new regional companies “to which existing MABS personnel would transfer.  In that correspondence he confirmed that all staff would “…transfer on their existing terms and conditions as per their existing contracts of employment.  These terms and conditions, which included job contracts and job descriptions, can only be changed after transfer with the agreement of staff.” The Complainant submitted that ultimately the restructuring contemplated in that correspondence was not completed until 3rd February 2020when the incorporation of eight regional companies was completed and all MABS staff on that date, transferred to them. 

The Complainant submitted that on 25th November 2019 he was verbally advised that CIB would not be continuing finding of his role as RDMA and that he was “surplus to requirements”.  He submitted that he was very taken aback and that he emailed Mr. O’C on 28th November 2019 pointing out that he was “…the only person of the existing Abhaile cohort not to have their contract renewed.”  He further submitted that he advised Mr. O’C that at that time he had a very active caseload comprising of 29 clients in Sligo, 25 in Mullingar and 15 in Finglas and he submitted that he was one of the most experienced Mortgage Advisors in MABS.

The Complainant submitted that Mr. O’C responded by email of 5th December 2019 and advised the Complainant that “the new MABS Support Company will not be funded for a DMA service” and he further advised that this decision was “not negotiable.” The Complainant also outlined that Mr. O’C had declined to respond to him in respect of his continued employment stating that “it is not my place to discuss your contract of employment, that is a discussion for MABS ND and you.”

In his submission the Complainant stated that on 11th December 2019, his representative wrote to Ms. AM O’C, Business Manager MABS ND and requested the initiation of a formal grievance procedure as set out in the MABS Staff Handbook, setting out what he considered to be the unfair selection of the Complainant for redundancy, as had been indicated to him in late November.  He submitted that on 19th December 2019 Ms. O’C responded to advise that “MABS ND has neither funding no sanction for the continuation of this post at the current time, and accordingly is not in a position to continue to employer (the Complainant) after the cessation of his current contract on 31st December 2019.” 

The Complainant submitted that on 20th December 2019 his representative emailed Ms. O’C, indicating that he had been made aware of a proposal to terminate the Complainants employment on grounds of redundancy.  In response to the proposed redundancy the Complainant’s representative had advised Ms. O’C that the Complainants priority was to retain his employment, and the proposition that he be made redundant opened up new questions, not least because the service that the Complainant provided would continue.  The Complainant submitted that his representative also referred to the forthcoming transfer of staff in the planned restructuring of MABS and the implications under Transfer of Undertakings Protection of Employees (TUPE) Regulation (SI 131/2003).

The Complainant submitted that Ms. O’C replied on the same day, advising that a letter of termination had issued to the Complainant and referenced this as a “redundancy situation as MABS ND does not have either the funding or sanction to offer any further extension…” beyond 31st December 2019.  Again, on the same day the Complainant received a letter date 20th December 2019 confirming the termination of his employment on the basis of a lack of funding and sanction from CIB.

It was submitted by the Complainant that as a result of the submission of his grievance Ms. O’C convened a hearing under the MABS ND Grievance Procedure which took place on 6th January 2020.  The Complainant submitted that at the hearing his representative raised the following points:

·       the apparent change in the basis for the termination of employment

·       the correspondence of 19th December which set out a redundancy payment, which had not previously been mentioned

·       the assurances given to unite Union that there would be no redundancies as a result of the planned restructuring of MABS

·       that no other DMA was on notice of termination of their employment or had their employment terminated and that only the Complainant appeared to have his employment terminated

·       that MABS ND had recruited a Project Manager for the DMA Project in May 2019 and that 8 additional RDMAs had been employed in the regions in the previous 12 to 18 months, increasing the number of DMAs employed to approximately 40 in total.

In addition, the Complainant representative argued that the Complainant should be retained in employment and transfer under TUPE into one of the new regional companies, in the alternative he suggested that the Complainant be compensated for the loss of his employment.   The Complainant submitted that at the meeting Ms. O’C had advised that DMA staff who had left employment in the previous year had not been replaced and that the Complainant was the last remaining RDMA.  It was submitted that Ms. O’C undertook to consider the arguments raised and to revert.

The Complainant submitted that Ms. O’C did revert by letter of 15th January 2020 and that, therein she confirmed the decision to terminate the Complainants employment.  In that letter she advised that this decision should be seen in the context of “two parallel processes” – (i)the reorganisation of MABS ND and (ii) the reorganisation of the DMA Project.  In that correspondence Ms. O’C also stated that MABS ND did not have the funding or sanction to retain the Complainant in his RDMA role. The Complainant submitted that at the grievance hearing his representative had suggested that CIB be requested to fund and sanction the Complainants continued employment but, in her letter, Ms. O’C confirmed that “MABS ND is not in a position to seek sanction to extend the role and detail (payments) in respect of the termination of (the Complainants) contract.”

The Complainant submitted that his representative sought an appeal of that decision on 29th January. And in response, he received a letter on 31st January 2020 from Ms. O’C acknowledging the request for an appeal hearing and advising that the transfer of undertakings was underway and would take effect on 3rd February 2020 when “the relevant business segments of MABS National Development will transfer to the new company, MABS Support CLG.” In that context, Ms. O’C undertook to “advise the Chair of MABS Support Company” of the request for an appeal hearing.  The Complainant submitted that the appeal hearing subsequently took place on 13th March 2020 and was chaired by the Chairman of MABS Support CLG, who was accompanied by a fellow director.

The Complainant submitted that on 15th April 2020, the Chairman emailed the Complainant and outlined the appeal decision, advising the Complainant that his contract of employment “naturally terminated in line with this expiry date, being 31st December 2019.”  In that response he stated that:

·       A statutory redundancy sum arose by virtue of that fact that (the Complainant’s service exceeded 104 weeks; the threshold required in establishing a statutory entitlement

·       He had not heard a persuasive legal argument that would alter the decision to terminate the Complainant’s employment

In his submission the Complainant pointed out that no reference was made to funding or sanction for the continuance of the Complainants employment.

The Complainant submitted that it was evident that the respondent sought to rely on Section 2(2)9b) of the Unfair Dismissals Act, 1977 which provides for exclusions under the Act in circumstances where an employment contract for a fixed term or a specified purpose is terminated by way of a “dismissal consisting only of the expiry or cesser” of a fixed term or a specified purpose, respectively.

He submitted that in the instant case, as repeatedly stated by the Respondent, both verbally and in writing, the termination of the Complainants employment was on the basis of a stated lack of funding and/or sanction by the Respondents client, the Citizens Information Board.  He submitted that that termination was not “only” or solely on the expiry of the extended fixed term contract and that the clear implication was that the Complainants contract would have continued and would not have been terminated solely on the expiry date, had funding or sanction been available.  The Complainant further submitted that it is established in the application of the Unfair Dismissals Act that fixed term and/or specified purpose contracts of employment, though fulfilling the requirements to be in writing, signed by both parties and containing an express provision for termination “due only to the expiry of the fixed term or cesser of the purpose” are to be literally interpreted.  The Complainant proposed that the basis for the termination must be exclusively the expiry of such a contract and relied on UDD 182 in support of his position.  He submitted that in that case the Labour Court dealt with a preliminary argument by the employer who sought to rely on the exclusion provision contained in Section 2 (2)(b) of the Act and noted that the employer accepted that the employee’s involvement in a performance review process “was in fact a determining factor in the non-renewal or extension of the Appellants contract of employment.”  The Complainant submitted that in the instant case the determining factor was reportedly an absence of funding and/or sanction.  The Complainant also relied upon the case of ADJ 00025711 in support of his position.

The Complainant pointed to UDD191 where a complaint of unfair dismissal failed because of an express statement in the fixed term contract and where the Labour Court stated that “the contract also stated that it was a fully funded contract, and the respondent had no control over its duration.”  The Complainant submitted that there was no such or like clause in his contract wherein the continuance of his role or his employment was expressly reliant on funding. The Complainant submitted that Clause 5 of his contract held the relevant provisions and stated that:

“Employment contract for the post of Relief Dedicated Mortgage Arrears Advisor. The appointment is temporary and is full time.

You are employed on a fixed term contract of employment for the purpose of filling the role of Relief Dedicated Mortgage Arrears Advisor.

Your employment will commence on 11th July 2016 and will terminate on 31st December 2018.

The terms of the Unfair Dismissals Acts, 1977-2007, will not apply to a termination of this contract due only to the expiry of the fixed term or cesser of the purpose.”

In relation to funding the Complainant submitted that

·       It was understood by him that the DMA Project, which was initiated in 2016, was most recently approved for funding by the department of Social Protection to cover three years, through to 2022

·       The Complainant was originally recruited as part of the resourcing of this project, and he was assigned work as a Relief DMA with MABS ND, while the remainder of those employed as DMA’s were recruited into the regional company structure

·       The funding provided by the Department covered the full complement of the DMA Project resourcing, both the Complainant’s post and the regional posts

·       The funding for the MABS service, which covers the regional companies also covered MABS ND (now MABS Support CLG) and its’ services, which included and continue to include the National Citizens Information Helpline, IT support for the regional offices and the establishment of debt management protocols with financial institutions was and continues to be provided by the Department of Social Protection

·       The Citizens Information Board (CIB) which is the recipient of the funding in question, and it is the CIB who decides on the deployment of funding.

The Complainant submitted that in the instant case it would appear that the CIB withdrew or failed to continue to funding MABS ND in the context of an emergent dispute between CIB and MABS ND, which apparently centred on differences in relation to the restructuring of services effected on 3rd February 2020 and that it was not the case that funding was not available for the continuation of the Relief DMA role that the Complainant occupied.  The Complainant submitted that funding was available then, and remains available under the most recently approved tranche of funding from the department of Social Protection.

The Complainant drew attention to Section 6 of the Act which provides that a dismissal must be considered to be unfair unless the employer can demonstrate that “having regard to all the circumstances, there were substantial grounds justifying the dismissal.”  The Complainant noted the fact that the primary funding was available from government but that the body responsible for distribution of funding, in the context of an apparent dispute chose not to continue funding in the manner previously distributed and the Complainant pointed to the written response of Ms. O’C to a direct question posed during the grievance hearing, where she stated that “MABS ND is not in a position to seek sanction to extend the role…”  The Complainant submitted that, in retrospect, this statement appears to be an oblique reference to the dispute in question.

The Complainant further submitted that the complexity of the circumstances involved also appeared to explain the lack of an explanation or justification provided in answer to the question of the selection process or indeed any selection process in determining that the Complainant ‘s employment should be terminated.  The Complainant pointed to Section 6(3) of the Act which required that a legitimate redundancy situation, where there is one or more potential candidates for redundancy there must be a fair selection procedure.  The Complainant submitted that there were some 40 DMAs employed at the date of termination of his employment and that there is considerable case law attesting to the requirement for a fair selection procedure.

The Complainant also noted the requirement, established in case law, that placed an expectation on employers to consider alternatives to termination of employment on grounds of redundancy, or indeed otherwise and submitted that there was no apparent consideration of any alternatives in the instant case, despite the fact that the DMA funding was available and that it was planned to continue for a 3-year period.  The Complainant stated that this was also despite the fact that other DMA resources were recruited to the regional offices since the Complainant had his employment terminated.

In conclusion the Complainant submitted that:

·       The Complainant had his employment terminated in circumstances where the requirements of fairness as defined and applied in law were manifestly unfair

·       That he may well have been the victim of a dispute between CIB and MABS ND (now MABS Support CLG)

·       That albeit, MABS ND may well have felt compelled to opt for a simple and convenient reliance on the express termination date in his contract of employment, as set out, they were not entitled to do so

·       The requirements of Section 2(2) of the Act were not met

·       The Complainants employer MABS ND, as well as falling short in meeting the requirements of Section 6 of the Act, did not meet the standard of reasonableness required, as no evidence was offered in respect of any effort to retain the Complainant or accommodate him in an alternative position within the broad MABS structure.

The Complainant submitted that taking all of the circumstances into account the termination of his employment by the Respondent should be deemed to be unfair.

Issue of Jurisdiction – Incorrect Respondent

At the outset the Respondent raised an objection to the hearing proceeding on the basis that the Complainant, on his claim form, had named MABS National Development Ltd as the Respondent to his sole complaint.  The Respondent submitted that MABS National Development Ltd was dissolved in February 2020 (3 months prior to the submission of the complaint) and was voluntarily wound up on or about 5th March 2020 (2 months prior to the submission of the complaint).  The Respondent submitted that the Board of Management of MABS National Development Ltd. Ceased to exist as of February 2020 and that the Respondent, as named by the Complainant, does not exist and did not exist at the time of submission of the Complainant’s complaint.  In those circumstances it was submitted that there was no case to be answered.

The Respondent submission pointed out that the use of the term Respondent throughout the submission was for ease of reference only and that such reference was not intended to reflect any acceptance of, or acquiescence to the invalidity of the complaint from the beginning.

The Respondent submitted that the Complainant had made no effort, application or attempt to amend his WRC complaint form (or indeed his substantive complaint) in circumstances where it was one calendar year since the submission of his invalid complaint.  The Respondent objected to any proposed amendment now taking place on the grounds of delay, impossibility and prejudice.

Furthermore, the Respondent, without prejudice to the foregoing, submitted that any amendment to the WRC complaint form relating to the identity of the Respondent must be subject (from the date of such amendment) to the statutory time limit for submission of a valid complaint of unfair dismissal to the Workplace Relations Commission.  In such circumstances, the Respondent submitted that any such amended WRC complaint form would be out of time from the date of the amendment, and therefore invalid; given that the Complainant alleged he was unfairly dismissed on 31 December 2019.  The Respondent submitted that there was no valid reason which both explained and justified the delay by the Complainant in bringing his complaint as a consequence no extension of time to submit his complaint could now be granted.  The Respondent pointed to the fact that the Complainant had the clear assistance of an independent advisor/legal advisor acting on his behalf. The Respondent relied upon the decision in the case of Cementation Shanske v Carroll, DWT 38/2003 in in support of its’ position that any amended claim would be statute barred.

At hearing the Respondent Representative raised concern that on the morning of the virtual hearing he had noted that the online “lobby screen” identified the Respondent as MABS Support CLG and he noted, for the record, that the complaint form identified the Respondent as MABS National Development Ltd., not MABS Support CLG.  He stated the Respondent objection to any such change, and he confirmed that position post hearing by email of 24th June 2021. 

The Respondent representative also noted at hearing, that the Complainant had not made an application for a name change or hadn’t notified or contacted the WRC seeking to amend the Respondent name with their knowledge or consent.  The respondent representative pointed out that the Complainant and his representative was aware of the transfer of the business to MABS Support CLG in February 2020 and that the Respondent named in the complaint form does not exist and did not exist at the time of submission of the complaint form. 

The respondent representative, in response to the case law relied upon by the Complainant stated that the instant case was different, that the only reason the appeal was issued in April 2020 and by the new entity was because the Complainants employment had ended 2 months earlier, by which time the entity that had employed the complainant was gone.

In conclusion the Respondent representative summarised that the Complainant commenced employment in July 2016 under a contract of employment with MABS Development Ltd., that this contract was extended by MABS Development Ltd in February 2019 and that his employment was terminated in December 2019 by MABS Development Ltd.  At no time did his employment ever come under the timeline of MABS Support CLG.

The Substantive Case

The respondent submitted that the Complainants allegation that he was unfairly dismissed on 31st December 2019 due to unfair selection for redundancy is refuted entirely and it contends that the Complainants temporary employment with the Respondent ceased by virtue of the natural expiry of his fixed term contract on 31st December 2019.  The Respondent noted that the payment of statutory redundancy payment was made to the Complainant on the sole basis that by the expiry date of his fixed term contract he had exceeded 104 weeks’ continuous service with the respondent.

The Respondent submitted that at the date of expiry of the Complainant’s fixed term contract the Complainant was the last remaining employee acting in the role of Relief Dedicated Mortgage Advisor (DMA) with the Respondent such that if it was established that the Complainant was made redundant (which was disputed), there could have been no possibility that he was unfairly selected for such redundancy by reason of the fact that there were no other employees in the same or similar roles with the respondent who could possibly have been pooled with the Complainant for the purposes of redundancy selection.  The Respondent drew attention to the fact that the Respondent is an entity with its own Board of director and was/is entirely independent of all other MABS Organisations.

The Respondent submitted that no de facto dismissal took place, that the Complainant’s signed contract of employment date 11 July 2016, subsequently extended to 31 December 2019, with both extensions signed by the Complainant, automatically ended by virtue of the natural expiration date on the contract and extension as was prior to expressly acceded to by the Complainant.  The respondent submitted that the Complainant expressly agreed to contract out of the application of the Act of 1977 to the termination of his employment due to (1) the expiry of the fixed term or (2) cesser of purpose by signing his contract of employment and subsequent signed extensions.

By way of background the Respondent submitted that:

·       The Complainant was employed as a relief DMA from 11th July 2016 until 31st December 2019 and that his initial contract was extended from 1st January 2019 until 17th February 2019 and was then further extended from 18th February 2019 until 31st December 2019.

·       No contract of indefinite duration statutory provision arose in this instance

·       The Complainant’s role was part of the “DMA Project”, a temporary project funded entirely by the Citizen’s Information Board (CIB).

·       CIB is the Respondent’s funder and dictates the continued sanction and funding for all posts within the respondent.

·       All roles within the project where wholly subject to CIB funding, therefore, all employees employed as part of the DMA project were employed on a fixed term basis.

The respondent noted that within the contract extension letter issued to the Complainant on 3rd December 2018 it was stated:

“This contract extension is for the post of Relief dedicated Mortgage Advisor and arises from an extension of DMA contracts until mid-February 2019, sanctioned by the Citizen’s Information Board.  We would like to emphasise that we very much appreciate your continued contribution to MABS ND but for this reason we cannot offer you a contract of indefinite duration.”

The Respondent submitted that during the period relevant to this claim, the Complainant position was a stand-alone position within the respondent and that:

·       In 2019 there were two other temporary fixed term employees of the Respondent in a similar role whose roles terminated and were not replaced

·       CIB had confirmed in November 2019 that funding for the extension of the Complainant’s contract beyond its natural expiry would not be sanctioned

·       That funding was to be continued for the extension of the DMA administrator roles but that these roles were entirely disparate to the Relief DNA role.  That role provided administrative support only and therefore they were not comparable to the role held by the Complainant.

The Respondent submitted that as soon as MABS ND became aware of the funding issue they verbally notified the Complainant of the situation, giving more than the required statutory notice of the termination of employment. 

The Respondent outlined the exchanges that then ensued and the sequence of events leading up to the termination of employment as follows:

·       Letter of 28 November 2019 from the Complainant to Mr. O’C, CIB outlining that she felt the decision not to renew his contract was unfair

·       Letter of 5 December 2019 from Mr. O’C to the Complainant advising that the DMA project was not continuing in the respondent and as such the Complainant’s contract was not being renewed

·       Early December 2019, phone call from Ms. K, MABS ND Ops & development Manager reaffirming the expiration of his contract and that it would not be extended

·       Letter of 11 December 2019 from the Complainant Representative submitting a formal grievance on the basis that the Complainant had been “unfairly selected for termination of his employment.”

·       Email of 18 December 2019 from CIN to Ms. AM O’C reaffirming that CIB had made the decision to discontinue funding the Relief DMA role and that henceforth the Complainant’s temporary fixed term contract would not be extended

·       Letter of 20 December 2019 from Ms. O’C to the Complainant providing written confirmation that his employment would cease on 31 December 2019 in line with the end date of his fixed term contract extension agreed on 18 February 2019.  In that letter she also confirmed that the Respondent did not have the funding from CIB to extend the Relief DMA post and she advised that owing to to the Complainant’s service, which was then in excess of 2 years, he was entitled to a payment at the expiry of the fixed term, and she outlined the value of that payment due.

The Respondent submitted that a grievance hearing was held by Ms. O’C with the Complainant, at which the Complainant was represented.  The Respondent noted the Complainants arguments to be that the Respondent was not entitled to terminate the employment contract under fixed-term arrangements and that the Complainant should have been retained along with other DMA staff.  The Complainant argued that, as an alternative to him retaining his role, he should be offered a public service redundancy package and that it was very much his focus at the hearing to secure suitable financial compensation due to the expiry of his fixed term contract.  The Respondent pointed out that the Respondent was not and is not a public service employer.

The Respondent further submitted that the Complainant and his representative placed two options before the Respondent at the grievance hearing:

1.      Adequate Compensation

2.      Continuation of Employment

The respondent outlined that on 15 January 2020, Ms. O’C issued the outcome of the grievance hearing to the Complainant and explained that there were two parallel processes at play, the re-organisation of the respondent itself and the re-organisation of the DMA Project within the respondent.  Ms. O’C noted that the respondent had neither the sanction nor the funding from CIB to extend the Complainant’s temporary fixed-term contract.

The respondent noted that an appeal of the outcome of that grievance was filed by the Complainant on 20 January 2020 in which the Complainant specifically accepted that an appeal hearing with the Respondent’s Chairman would be the final stage of the internal process. The respondent noted that the terms and conditions of the Complainant’s employment enabled him to appeal a grievance outcome to an outside third party or outside arbitrator if he so wished.

The Respondent submitted that on 31 January 2020 Ms. O’C wrote to the Complainant’s representative advising him that the relevant business segments of the Respondent would be transferring to an entirely separate entity on or about 3 February 2020, and therefore the grievance appeal would have to be heard by the new Chairperson who would require some time to acquaint himself with the content of the Complainant’s grievance.

On 13 March 2020 Mr. JO’L (Chairman) and Mr. DC, Director as a sub-committee of the Board of the respondent heard the Complainant’s grievance appeal at a hearing attended by the Complainant and his representative.  At that hearing the Complainant’s focus “at all times was expressed as shock that his role was being made redundant and that he had been unfairly selected for redundancy.”  At the hearing Mr. O’L pointed out numerous times that his role was not being made redundant; that it appeared simply to be the case that upon the expiry date of his temporary fixed-term contract the Complainant had by then accrued service, entitlements for which the respondent was at pains to ensure he received.

The respondent submitted that on 15 April 2020 Mr. O’L issued the outcome of the grievance appeal to the Complainant and therein highlighted that the statutory redundancy payment had been made to the Complainant owing to him having had in excess of 104 weeks continuous service at the expiry of his fixed-term contract.

The respondent submitted that the 1977 Act (as amended) has no application to this complaint and that the WRC, respectfully, has no jurisdiction to her the claim by virtue of the operation of section 2(2)9B) therein. The Act does not apply to the expiration of the Complainant’s contract of employment by virtue of section 2(2)(b) of the said Act.  The conditions necessary to satisfy the requirements of section 2(2) are satisfied in this case, i.e.; 91) the contract is in writing, (2) the contract is signed by the employer and the Complainant, and (3) the contract provides that the Act of 1977 shall not apply to a dismissal consisting only of the expiry of a fixed-term or the cesser of the specified purpose.  In support of its position the Respondent relied upon Malahide Community School v Conaty UDD 37/2018 (Labour Court) and [2019] ELR 178 (High Court, Simons J.), where the High Court confirmed that section 2(2) provides for the possibility of the employee, at the commencement of their employment, making an ‘informed decision’ to waive their statutory rights.

The respondent submitted that the written contract signed by both parties sets out that the Complainant was employed on a temporary, fixed-term basis and further that “…The Terms of the Unfair Dismissals Acts, 1977-2007, will not apply to a termination of this contract due only to the expiry of the fixed term or cesser of the purpose” and that the contract permitted termination with notice, as well as the agreed waver of same.  The respondent submitted that by signing the contract the Complainant understood the explicit provision provided on the document in bold typeface above his signature ‘The terms and conditions of my employment in MABS ND have been explained to my satisfaction…’ as well as paragraph 32 of the contract which stated, ‘I acknowledge receipt of and acceptance of this employment contract.’

The Respondent outlined that in relation to contract extensions (3 December 2018 and 18 February 2019) it specifically stipulated in the former that the 6-week extension offered to him up to mid-February arose because sanction was provided to the Respondent by its funder, CIB and further ‘…for this reason we cannot offer you a contract of indefinite duration.’ The Respondent noted that it was also expressly stated that ‘The Unfair Dismissals Act, 1977-2007 will not apply where the only reason for terminating this contract is the expiry of the fixed term’ and further ‘All other terms and conditions of your employment shall remain unchanged as per your contract dated 11th July 2016.’ 

The Respondent noted that in the latter extension documentation variations only were made to the Complainant’s hours of work, salary, annual leave and duties but it was again expressly stated ‘All other terms and conditions as detailed in your existing employment contract will continue to apply.’ The Respondent submitted that therefore the Complainant was under no allusion that his contract and subsequent extensions were for a specified time period and specified purpose only, and that his engagement was temporary and not permanent and that the Act of 1977 would not apply to the termination by reason of the expiry of the contract’s terms.  The Respondent noted that the Complainant signed both his initial contract and the subsequent extensions of same.

The Respondent pointed out that the Complainant was not a public service employee nor a civil servant and that as such section 2A of the Act of 1977 did not apply in the case.  In support of that position the Respondent noted that the Complainant had described the main business/activity of the respondent as “other service Activities” on his complaint form and had confirmed on that form that the Respondent complained against was a limited company not in receivership or liquidation.  In circumstances where the Complainant confirmed in his complaint form that his complaint did not relate to the Transfer of Undertakings Regulations the respondent confirmed that it made no submission in relation to same.

In conclusion the Respondent submitted that

·       It was informed by its funder, CIB, that the Relief DMA role would not be funded or extended and it would therefore naturally expire on 31 December 2019

·       All roles under the ‘DMA Project’ were sanctioned and solely funded by CIB, therefore the respondent had no approval or financial capacity to extend the Complainant’s fixed-term contract

·       If the Respondent had sought to reallocate other funds in order to retain the Complainant, this would have been in breach of their service level agreement with CIB and would ultimately leave the respondent open to an allegation of a misuse of public funds

·       The Respondent determined that whilst the Complainant’s contract was terminating at its natural expiry date it was still appropriate for a statutory redundancy payment to be made to him in light of the fact that he had in excess of 104 weeks’ continuous service.

·       The Respondent acted in good faith towards the Complainant by furnishing the statutory redundancy payment to him and was guided in this regard by the WRC decision in the case of A Plumber v A Hotel Company (ADJ-00012745) where the Adjudication Officer concluded that “The Complainant is eligible for a redundancy payment because he met the service qualification of two years under the Redundancy Act, in circumstances where his employer needed less employees. The fact that he was engaged on a series of fixed-term contracts with a definitive end date does not invalidate this entitlement.’

·       No attempt was made by the Complainant or his representative to prevent the payment of the redundancy payment or to return same.  The only communication in that regard was to seek a more valuable redundancy package at the grievance hearings. On that basis the respondent submitted that the Complainant had acquiesced to the redundancy payment, thereby accepting, through his conduct and/or omissions, the cessation of his employment with the Respondent.  The Respondent pointed out that this fact was relevant to any question of redress which might become necessary in these proceedings.

·       It was assumed that the 40 DMAs referred to by the Complainant are staff members in other MABS regions within the state and that these are separate and distinct companies entirely to the Respondent with separate Boards of Management and that therefore the Respondent did not (and does not) have any insight into what contracts were extended or terminated in those other entities.

·       The respondent extended 2 Administrator contracts in the context of confirmed sanction and funding approval and these two roles were distinctly different from the role occupied by the Complainant.

·       In the context where the Complainant occupied a ‘stand-alone’ role and where the sanction and funding approval was refused the Respondent was left with no option but to allow, as was intended, the contract to reach it’s natural expiry date of 31 December 2019.  The respondent submitted that it was not the case that there were other employees in the same role with the Respondent who had their contracts extended to the Complainant’s detriment.

Redress

The Respondent noted that the Complainant had sought reinstatement pursuant to section 7 of the Unfair Dismissals Act, 1977 and contended that the redress sought was not reasonably practicable due to the following:

·       The Respondent as named in the Complainant’s complaint form was dissolved prior to submission of the complaint and no longer exists

·       Funding for the Complainants’ former role as Temporary Relief DMA beyond December 2019, had been withdrawn by CIB and all roles within the Respondent are subject to continued CIB sanction and funding

·       The DMA Project, under which the Complainant was employed, is no longer on-going in the Respondent organisation, and therefore there is no work for the Complainant to be reinstated to perform.

The Respondent contended that re-engagement is also not a viable option in circumstances where (1) the Complainant has not sought same and (2) the DMA Project is no longer ongoing in the Respondent’s organisation, such project being the basis upon which the Complainant was hired, trained and suitable for.

The Respondent further submitted that it is the Complainant’s burden of proof to establish that his relationship with the Respondent is not now irretrievably broken as to warrant an order from the WRC granting him re-engagement and finally, the Respondent submitted that the Complainant had no loss and/or had failed to mitigate his loss.

Conclusion

In conclusion the Respondent submitted that:

·       The Complainant’s complaint is invalid and must be dismissed in circumstances where the entity identified by the Complainant in his WRC complaint form does not exist and did not exist at the date of filing of the Complainant’s complaint and that the Complainant was aware of those circumstance since plans were communicated to him in early 2019.

·       The WRC does not have jurisdiction to hear this complaint by operation of section 2(2) of the Act of 1977 (as amended)

·       The Complainant was not unfairly dismissed contrary to the provisions of the Act, but his employment ceased by the lawful expiry of the fixed-term of his contract (and subsequent extensions)

·       While the Complainant alleged in his complaint form that the reason given for his dismissal was “Alleged Redundancy” he was not in fact dismissed by reason of redundancy albeit he received a redundancy payment upon the expiry of his fixed-term contract.  This payment was reflective of the service entitlement he had obtained at that time

·       The Complainant had no loss and /or failed to mitigate any alleged loss that he may seek to place before the Adjudicator.

Issue of Jurisdiction – Incorrect Respondent

The first issue that I must decide is the jurisdictional issue raised by the respondent, that the Complainant named an entity that is dissolved and was dissolved at the time of submission of claim.

The Respondent submitted that the Complainant had referred her complaint against MABS ND, a company which was dissolved in early February 2020, prior to the submission of this claim, that the WRC has no jurisdiction to hear a claim in respect of an entity that does not exist, that the Complainant made no attempt to amend her complaint form since submission of her complaint and that any such amended complaint would render the complaint statute barred.

The Complainant contended that MABS ND was the Complainants employer, that it’s agent Ms. O’C dealt with all engagements in relation to the matter prior to and after the termination of employment and prior to and after the winding up of MABS ND and after the establishment of MABS Support CLG.  The Complainant contended that the appeal of the outcome his grievance relating to the termination of his employment was heard by the Chairman of the Board of MABS Support CLG and that he was formally requesting the change of name.

Therefore, the question I must decide is whether or not it is legally permissible for me to accede to the Complainants request to substitute the entity MABS Support CLG as the correct Respondent in this case.

In considering this matter I have taken the following factors into consideration:

·       The Complainant was employed by MABS ND, and this employment relationship remained unchanged throughout the totality of the Complainant’s employment.

·       The Complainant was never employed by MABS Support CLG and confirmed in his complaint form that he had no complaints under the Transfer of Undertakings legislation.

In these circumstances I have concluded that I cannot acceded to the Complainant’s request to amend the claim form to denote MABS Support CLG as the named Respondent in this case. 

In the context of the above I find that I do not have jurisdiction to hear this matter.

I have found that I cannot acceded to the Complainant’s request to amend the claim form to denote MABS Support CLG as the named Respondent in this case and as MABS ND does not exist as an entity it is my decision that I do not have jurisdiction to hear this complaint.

Jurisdiction, unfair dismissal, unfair selection for redundancy